First District Holds CEQA’s Substantive Requirements Apply to Environmental Documentation of State Agency Acting Under Certified State Regulatory Program, Directs Issuance of Writ Setting Aside Inadequately Reviewed Pesticide Label Approvals

Miller Starr Regalia

In a published opinion filed September 19, 2017, the First District Court of Appeal reversed the trial court’s denial of a writ petition challenging defendant California Department of Pesticide Regulation’s (“Department”) approval of label amendments for two pesticides containing an active ingredient toxic to honeybees.  The Court held the Department’s environmental review was deficient in failing to adequately address feasible alternatives, lacking adequate baseline information, and lacking an adequate cumulative impacts analysis, and that its public reports were so inadequate and conclusory as to render public comment effectively meaningless and require recirculation.  Pesticide Action Network North America v. California Department of Pesticide Regulation (Valent U.S.A. Corporation, et al., Real Parties In Interest) (1st Dist., Div. 3, 2017) _____ Cal.App.5th ______.

As relevant background, the Department regulates the distribution, sale and use of pesticides in California pursuant to State regulations that seek to provide for the safe and efficient use of pesticides essential for food production while protecting public health and the environment.  Pesticides sold or used in California must be registered, first by the USEPA, (7 U.S.C. § 136a), and then by the Department following its own review and evaluation to ensure that when used in conformance with its labeling the pesticides will be effective and not harm human health or the environment.  (Food & Agr. Code, §§ 12811, 12824.)  Pesticides with “serious uncontrollable adverse effects,” or whose environmental detriments outweigh their benefits, or for which there is a “reasonable, effective, and practicable alternate material . . . less destructive to the environment” cannot be registered.  (§ 12825 (a) – (c).)  The Department may also restrict how, where and in what quantities registered pesticides can be used, and to remain valid registrations must be annually renewed.  (§§ 12824, 12817.)  The Department must continually evaluate registered pesticides to ensure they pose no environmental danger; investigate information indicating possible significant adverse environmental effects or environmentally beneficial alternatives exist; and reevaluate pesticides where it finds such effects or available alternatives.  (Cal. Code Regs., tit. 3, § 6220.)  The Department may cancel a pesticide’s registration upon determining it “presents serious uncontrollable adverse effects to the environment.”  (Citing Food & Agr. Code, § 12825.)

At issue in this case was the Department’s approval of amended labels for two previously registered pesticides: (1) Dinotefuran 20SG, manufactured by real party Mitsui Chemicals Agro, Inc. (Mitsui), first registered by the Department in June 2005 and renewed annually since; and (2) Venom Insecticide, manufactured by real party Valent U.S.A. Corporation (Valent), first registered in March 2006 and renewed annually since.  Both insecticides contain the active ingredient dinotefuran, part of a class of pesticides called neonicotinoids, and that chemical and others in the group have been undergoing a reevaluation by the Department since early 2009 based on data indicating potential for accumulation in plants at levels toxic to honeybees.  Honeybees are vital to the pollination of many crops critical to the national food system and State economy; their sudden and widespread decline from a complex phenomenon known since 2006 as “colony collapse disorder” has made improving the health of honeybee colonies imperative.  A key 2012 Stakeholder Report identified “pests, pathogens, pesticides, nutritional deficiencies and beehive management practices” as factors contributing to colony collapse disorder and called out the “[a]cute and sublethal effects of pesticides” as a “primary concern.”  California legislation in 2014 echoed the Stakeholder’s Report’s findings, and requires the Department to issue a determination regarding its neonicotinoid reevaluation by July 1, 2018, and within two years thereafter to “adopt any control measures necessary to protect pollinator health.”  (Food  & Agr. Code, § 12838(a), (b)(1).)

Public reports released by the Department in 2014 proposed approving amended labels allowing Venom Insecticide to be used on additional types of crops and in increased quantities, and Dinotefuran 20SG to be used on additional crops while adding pollinator protection language.  The reports stated the Department had evaluated the new labels for human health and adverse environmental impacts and “determined that use of each product consistent with its new label will have no direct or indirect significant adverse environmental impact, and therefore no alternatives or mitigation measures are proposed to avoid or reduce any significant effects on the environment.”  In response to expert and other public comment raising honeybee impact concerns, the Department represented in conclusory fashion that the expanded labels would not present “additional risk to pollinators.”  While acknowledging “[d]ata indicate that neonicotinoids are acutely toxic to honeybees and other pollinators” the Department claimed it “does not yet have sufficient scientifically robust data to support a regulatory action to implement additional mitigation measures, over and above the current label restrictions.”

In reversing the trial court’s judgment denying plaintiff Pesticide Action Network North America’s (PANNA) CEQA writ petition challenging the label amendments, the Court of Appeal squarely rejected the Department’s argument that it was broadly exempt from CEQA’s substantive requirements due to its certified regulatory program regarding the “registration, evaluation, and classification of pesticides.”  (Citing Californians for Alternatives to Toxics v. Department of Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1059.)  While certified regulatory programs are exempt from CEQA’s requirements to prepare initial studies, negative declarations and EIRs, and may prepare and use “functional equivalent” program-related “substitute documents” to avoid redundancy and related unreasonable expense and burden, this CEQA exemption is of limited scope.  Per the Court: “While the Department correctly states its program documents may be used in lieu of the documents normally prepared under CEQA, it goes too far in asserting its regulatory program ‘is exempt from the substantive portions of CEQA.’”  Rather, the plain language of CEQA (Pub. Resources Code, § 21080.5(c)) and the Guidelines confirm the limited scope of the procedural exemption and that “[a] certified program remains subject to the other provisions in CEQA such as the policy of avoiding significant adverse effects on the environment where feasible” (citing CEQA Guidelines, § 15250, emph. the Court’s), and the case law is in accord.  (Citing Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1219-1220, 1236 [“board abused its discretion when it evaluated and approved the THPs on the basis of a record that lacked information that other agencies had deemed necessary regarding the presence of old-growth dependent species” and CEQA imposed obligations on board to collect such information, without which it could not identify project’s environmental impacts]; Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 617-620 [explaining and clarifying limits of exception granted to certified regulatory programs].)  Thus, “the Department’s program – and the environmental review documents it prepares – remain subject to the broad policy goals and substantive standards of CEQA not affected by the limited exemption set forth in [Public Resources Code] section 21080.5, subdivision (c).”  Accordingly, “the Department’s environmental review is not a “blanket exemption” from CEQA, and it may not be relieved of CEQA’s substantive requirements to thoroughly evaluate specific environmental effects before it approves an activity.”

Having concluded CEQA’s substantive requirements to be applicable, the Court had little trouble concluding the Department’s public reports for the label amendments failed to comply with a number of them.  The Department’s documentation confirmed it “made no effort to analyze alternatives to the expanded use of either Dinotefuran 20SG or Venom Insecticide” and failed to describe “any feasible alternatives . . . including a “no project” alternative.”  Rejecting the Department’s defense that “it need only consider alternatives when it has found significant environmental impacts,” and that it expressly found none, the Court noted this position was inconsistent with the Department’s findings made in support of its continuing (since 2009) reevaluation of dinotefuran.  (Citing Cal. Code Regs., tit. 3, § 6220 [requiring reevaluation when substance “may have caused, or is likely to cause, a significant adverse impact, or that indicate there is an alternative that may significantly reduce an adverse environmental impact”].)  The language of the Department’s regulations governing reevaluation did meaningfully differ from CEQA’s “fair argument” standard, which the Court applied here.  Even if its “no significant impact” finding was “meaningfully derived,” the Department failed to document or explain its analysis in the record, and failed to carry its burden to demonstrate that its project approval followed meaningful consideration of alternatives.

The Department’s abbreviated environmental documents also failed to adequately delineate environmental baseline conditions under CEQA’s applicable requirements; per the Court: “Simply because the Department “had mountains of data about actual use” of other neonicotinoids does not mean it actually used that data to define a baseline or inform its conclusions, and there is nothing in the record that reflects it actually did so.”

Nor did the Department fulfill the “closely related” “substantive CEQA requirement” to assess cumulative impacts, and “case law makes clear such an analysis is an integral part of a [certified regulatory] program’s evaluation process.”  The Court held “the Department . . . failed to explain its analysis of the cumulative impacts of registering new uses for the pesticides in the context of . . . [its] past, present, and future decisions regarding neonicotinoid use in California.”  To the contrary, its conclusory “one-sentence response [to a comment on the issue] lacked facts and failed to provide even a brief explanation about how the Department reached its conclusion,” which the Court found unsurprising “given [that] the Department’s approach appears to have been to simply put off altogether considering the cumulative effects of approving additional and increased uses of dinotefuran-containing pesticides until the reevaluation is complete.”  Again, the Court found the Department failed to proceed as required by law and abused its discretion.

Finally, “in light of the Department’s pending neonicotinoid reevaluation, its initial public reports for [the pesticides] were both so inadequate and conclusory that public comment on the draft was effectively meaningless” and “[g]iven [that] the Department refrained from explaining its decision until it responded to public comments, recirculation was required to allow meaningful public comment directed at the rationale for its decision.”

While the First District’s decision does not appear to break new legal ground, it provides an excellent primer on pesticide regulation and a good reminder that state agencies operating under a certified regulatory program are nonetheless subject to CEQA’s substantive requirements.

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